Compliance Clips for August 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

EEOC ADA Guidance
Under the EEOC’s newest guidance, employers can be liable for violating the Americans with Disabilities Act if artificial intelligence technology used to make employment-related decisions discriminates against individuals with disabilities. While employers are increasingly using AI decision systems for hiring and evaluation, it might be surprising to learn that these tools may unknowingly lead to discrimination. Specifically, there may be failure to provide reasonable accommodations to individuals with disabilities, or worse yet, there could be potential to screen out individuals with disabilities. The EEOC recommends making the hiring process transparent by providing instructions for accommodation that are easy to find and follow.
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FCRA Litigation
Let’s work together to help minimize the risk of class action FCRA lawsuits. Employers must provide job applicants with a standalone disclosure stating the employer may obtain the applicant’s consumer report when making a hiring decision. In the case discussed here, it was alleged that an employer willfully violated the FCRA by providing candidates with disclosure that included extraneous language not related to consumer reporting.
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It’s because of cases like these that A-Check Global maintains a sharp focus on background screening compliance. We routinely ask that our valued clients check, double-, and triple-check to ensure that your employment consumer reporting is FCRA compliant. When an employer uses a third party (like A-Check Global) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a short checklist of key requirements:

Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.

Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.

Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.

If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.

Allow the individual at least five business days to dispute the information in the background check.

If adverse action is taken upon final decision, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.
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I-9

I-9 Deadline
A quick reminder that the employer deadline was July 31, to update expired List B (proof of identification) with current proofs of identification for employees hired between May 1, 2020 and April 30, 2022 who presented an expired document. The Department of Homeland Security (DHS) adopted the temporary policy flexibility in response to challenges employers faced with renewing these documents during COVID. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, the DHS ended this flexibility May 1, 2022, and employers must once again accept only unexpired List B documents.
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SUBSTANCE ABUSE TESTING

California Law
Recently, the Ninth Circuit Court of Appeals ruled that under California law, job applicants were not entitled to compensation or travel expenses for the time required to take a pre-employment drug test. It is worth noting that this case is limited to pre-employment drug testing. It does not discuss drug testing for existing employees. The compliance reminder here—for those employers including drug testing as part of the employment process—is to ensure you make it clear to your candidates that any employment offer extended is contingent upon passing a pre-employment drug test.
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Drug Testing Analysis
Drug test positivity reaches highest level in two decades, as reported by Quest Diagnostics. According to drug testing analysis based on more than 11 million drug test lab results conducted throughout 2021 by Quest Diagnostics, the rate of drug test positivity across the combined U.S. workforce hit a two-decade high last year. This is 30% higher than recorded all-time lows in 2010-2012, bringing added recruiting complexity to HR professionals hiring for safe, healthy workplaces. The Quest Diagnostics Drug Testing Index Analysis looks at the combined U.S. workforce including private employers with company testing policies, as well as federally mandated, safety-sensitive positions such as federal employees and transportation positions like pilots, forklift operators, etc. The overall positivity rate for this combined workforce was 4.6% in 2021, up from 4.4% in 2020. In comparison to just a decade ago between 2010 and 2012, overall positivity was 3.5%.
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Washington D.C.
The Washington, D.C. city council passed the Cannabis Employment Protections Amendment Act, with employment protection for recreational and medical marijuana use. Congress has 60 days to review this act before becoming law. The Cannabis Employment Protections Amendment Act prohibits employers, with certain exceptions, from refusing to hire, terminating from employment, suspending, failing to promote, or otherwise penalizing due to an individual’s use of cannabis.
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Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.

Questions? We’re here to help!

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